AG: Gowan travel spending ‘troublesome,’ not criminal

Speaker of the House David Gowan praises the work of legislators in finishing the legislative session quickly on April 15, 2015. (Photo by Rachel Leingang, Arizona Capitol Times)

Former Arizona House speaker David Gowan will not be charged by the attorney general despite a lengthy investigation that called reimbursements for travel and per-diem payments given to him “troublesome.”

Gowan, a Republican from Sierra Vista, requested the AG investigation after the Arizona Capitol Times published a report in early 2016 detailing how use of state fleet vehicles had skyrocketed under his administration.

Gowan also repaid the state $12,000 that he had wrongfully received as reimbursement for trips he had taken in state vehicles (but reported as taking in his own vehicle) and per diem pay for days he had claimed to work, but didn’t.

“The investigation has shown that there was a substantial disregard for determining whether state funds for per diem, mileage, and official travel were paid pursuant to proper authority, acts which could be potential felony violations (of state statute),” an attorney general’s memo detailing the investigation says. “However, it appears that the violations were not undertaken knowingly or intentionally but were instead attributable to negligence – meaning that criminal charges could not be proven in court.”

After the initial investigation into Gowan’s travel began, the attorney general opened another investigation to determine if Gowan’s staff hid or destroyed public records related to the allegations against him. The records investigation continues.

Gowan ended his bid for a Congressional seat before the 2016 primary. He left the House at the end of the year because of term limits. But he filed a political committee in December 2016 to run for an Arizona Senate seat.

Several documents related to the AG investigation were redacted because they pertain to a “state grand jury.” By law, the Attorney General’s office can’t disclose grand jury information, and therefore can’t comment on redacted information in the Gowan case file.

“Generally speaking, our office may go to a grand jury to obtain a subpoena during an ongoing criminal investigation,” AG spokeswoman Mia Garcia said in an email.

The investigation on the travel spending found the breakdown in communication came because Gowan’s assistant, Becca Farmer, submitted reports for per diem and mileage based on his official calendar. She repeatedly tried to confirm events on his calendar with him or other staff. But because of a lack of communication, she began submitting reports based on Gowan’s calendar alone.

The reimbursement system in general creates a potential for problems because staff members don’t always have the needed information to submit claims, and elected officials weren’t filling out the claims themselves, the attorney general’s investigation, led by Assistant Attorney General Todd Lawson, found.

“Ensuring accurate reporting of this mileage is a problem because it essentially forces staff to inquire ‘where did you sleep last night?’ Moreover, it would be a very repetitive question – it would need to be asked for each day the member is involved in legislative business at the Capitol (or the legislature’s office in Tucson),” the investigation memo says.

House Speaker J.D. Mesnard, R-Chandler, changed the legislative body’s travel and reimbursement policies this year, instituting prior approval for reimbursed travel and discouraging the use of fleet vehicles. The new rules also require a “wet signature” instead of an electronic one.

The new policy also includes special rules for travel in election years, when after June 1, the only travel that may be reimbursed is between a representative’s home and the state Capitol, unless special permission is given by the speaker.

Brett Mecum, Gowan’s deputy chief of staff, said he wasn’t surprised by the AG’s findings and long expected the conclusions that investigators reached. Mecum, who was interviewed as part of the investigation, praised the AG’s office for doing a thorough job.

“I think the report speaks for itself, and I think former Speaker David Gowan can sleep easy now,” Mecum said.

Gowan said the AG’s findings were “both predictable and welcome.” In a statement, Gowan points out that he asked the AG for an investigation himself, calling the investigation “long and exhaustive” consisting of “countless interviews and an in-depth review of reams of documents.”

Any errors made by his administration were “unintentional,” he said. He said people can learn from his experiences in House leadership.

“Subsequent administrations will also be able to benefit from these experiences in order to best prepare elected officials and their staffs for how to avoid making similar inadvertent mistakes,” he said.

“Nevertheless, I’m glad to finally put to rest this process, as well as the false accusations made by a handful of opportunists looking to settle a political score or score political points.”

TRAVEL ISSUES

The state also determined there wasn’t enough evidence to seek any charges that Gowan campaigned using state resources when he checked out state cars for travel throughout the 1st Congressional District.

Gowan traveled throughout the sprawling district, where he was running for Congress, in state vehicles. But Gowan called himself the speaker for the whole state, which he said required travel to places outside his elected district.

Investigators didn’t find enough proof to pursue charges for violating state statutes that prohibit any public spending on campaigns. In a couple cases, Gowan’s official state business crossed over into political questions. For instance, at a radio appearance in Flagstaff, Gowan spoke about state policy issues, though the host also asked about his congressional run, which Gowan answered.

“This does not seem like a clear cut violation of the statute, given the mixed purpose of the event. A conviction based upon these facts seems unlikely,” the investigation concluded.

The investigation found Gowan took a state vehicle to his home in Sierra Vista 12 times in 2015. State statutes say state vehicles can’t be used for normal commuting to work from home unless the employee is on duty.

But the Attorney General’s Office said the statute was “confusingly worded,” leaving a number of potential acts open to interpretation. Because of the “weak statutory language,” the attorney general decided not to pursue charges of misuse of state vehicles.

Gowan told investigators he didn’t use the state vehicles for any personal business and took them home if he had other state business on subsequent days and would be traveling from home. Gowan also reimbursed the state for costs of renting the state vehicle on days where they were at his home, but not used for official events.

PER DIEM PAYMENTS

Gowan’s deputy chief of staff, Lesli Sorenson, told investigators inaccuracies in per-diem payments have always been a problem for the House. For instance, sometimes lawmakers carpool, so only the driver should be reimbursed for mileage.

“Revisions to the per diem claim system should be considered, with an eye toward greater accountability toward the members who receive the benefit of per diem payments,” the investigation concluded.

Multiple witnesses claimed Gowan said in May 2015 that he wasn’t getting all the reimbursement money he felt he was owed. Because of this, Farmer, Gowan’s assistant, felt she needed to submit reimbursement forms for him even when communication wasn’t clear. Even Sorenson, who investigators say was in “near-daily” contact with Gowan, wasn’t sure which events he did or did not attend.

“It appears that the overpayment is entirely attributable to miscommunication, a lack of an approval process, and the failure of Gowan to appreciate that he had been overpaid prior to January of 2016,” the investigation found.

Because of the supposed breakdown in communication, Gowan received many reimbursements for mileage even though he used a state vehicle, essentially double-dipping on payments. Some of the reimbursements were “sizeable, adding significant sums to his paychecks,” investigators say.

But Gowan said he didn’t pay close attention to his paychecks, and had no way of knowing what reimbursements ended up in each paycheck.

“There is an argument to be made that Gowan constructively knew – or should have known – that he wasn’t entitled to the extra funds in his paychecks. However, it would be very difficult to show in Court that Gowan noticed inconsistencies in his paychecks, or knew the breakdown in them,” investigators said.

Investigators asked for the case to be closed, saying there’s not enough evidence on any of the claims to prove beyond a reasonable doubt that Gowan or his staff knowingly or intentionally broke any laws.

Brnovich said there appeared to be a “systematic breakdown” at the House and a lack of checks and balances which he found worrisome, but there was not a reasonable likelihood of conviction based on the evidence.

“Just because something may be unethical or even troublesome, it doesn’t mean that it rises to level of criminal conduct, and I think that’s what happened in this case,” Brnovich said.

He said his job as a prosecutor is to arrive at justice, and there just was not enough evidence to go forward. Any suggestions of a Republican protecting another Republican are baseless, he said.

“Frankly, that’s insulting on so many levels. … I think my record speaks for itself. We have been willing to take on people regardless of their political affiliation or political background. Anybody that says that is just trying to score cheap political points,” Brnovich said.

As to the reasons for the lengthy 18-month investigation, Brnovich said the case was complex, involving hundreds of hours of interviews and tons of documents. And even the AG’s office struggled to access records from the Gowan administration, Brnovich said.

“As a prosecutor, you gotta dance with who brung you, and sometimes it takes a little longer to get information and collect that information and compile it and go through it than maybe you’d like it to, but that’s just the reality,” he said.